Jones v. Curtis

Cook, J.,

delivered the opinion of the court.

This suit was filed in the circuit court of Quitman county by the plaintiff, John P. Jones, against the defendant, John Z. Curtis, on a dishonored check for three hundred dollars and a promissory note for one hundred and forty-five dollars both given by the defendant to the plaintiff on December 27, 1920, as a part of one transaction. The defendant filed a plea of the general issue and a special plea setting up a failure of consideration, and at the trial there was a verdict and judgment for the defendant, from which this appeal was prosecuted.

It appears from the testimony that in the early part of 1920 several negro tenants moved from lands of the appellee in Quitman county to the plantation of the appellant in Leflore county. At the end of the year these tenants desired to return to the plantation of the appellee, and, after some negotiation by telephone and letter, the appellee went to the plantation of the appellant and concluded an arrangement for the return of the tenants. Under the terms of the agreement between the parties, the appellee agreed to pay to the appellant the sum of four hundred forty-five dollars, for which he executed and delivered the check and note sued on, but the testimony is conflicting as to the obligation assumed by the appellant. The testimony for the appellee tended to prove that the consideration for this check and note was the consent of the appellant to the removal of these tenants and all their personal property from his plantation, the release by the appellant of all his claims against the tenants for supplies furnished or advances made, and the additional agreement that he would transport the goods and effects of these tenants to the railroad station at Sidon, Miss., and load them on a freight ear, and also pay for and furnish transportation for the tenants themselves from Si-don to Lambert, Miss. Under the agreement between the parties, the tenants returned to appellee’s plantation, and the appellant shipped a large quantity of their goods and effects; but there was testimony for the appellee tending to prove that the appellant failed and refused to furnish transportation for these tenants, and that he failed and refused to ship or release various items of personal property belonging to these tenants.

It is conceded that a large part of the property which' the appellant, by the testimony of the appellee and his witnesses, agreed to ship was actually shipped and received by the appellee and his tenants, and, upon the evidence offered, instructions were granted for the plaintiff to the effect that if the jury believed that the consideration for the note and check sued on was the agreement of the plaintiff to ship certain property belonging to the tenants who were moving to the plantation of the defendant, it should deduct from the amount of the note and check only the proportion which the value of the property which he failed to ship bore to the value of the whole property which should have been shipped. For the defendant instructions were granted directing the jury to give the defendant credit for the market value of all items of property which the plaintiff agreed to ship to the defendant, but failed to ship.

Under section 28 of the Negotiable Instruments Act (Hemingway’s Code, section 2606), absence or failure of consideration is a matter of defense as against any person not a holder in due course, and partial failure of consideration is only a defense pro tanto. The same rule has been frequently announced in the decisions of this court (Coulson v. Stevens, 122 Miss. 797, 85 So. 83; Despres, Bridges & Noel v. Hough Drug Co., 123 Miss. 598, 86 So. 359), and under the most favorable view of the testimony for the defendant it established only & partial failure of consideration. Under this evidence the instructions for the plaintiff announced the correct rule. The verdict of the jury followed the instructions granted to the defendant, and since these instructions are erroneous, and in conflict with the instructions for the plaintiff, the judgment of the court below will be reversed and the cause remanded.

Reversed and remanded.